Intellectual Property
Agencies Progress in Implementing Recent Legislation, but Enhancements Could Improve Future Plans Gao ID: GAO-11-39 October 13, 2010In Process
Officials from DOJ and its Federal Bureau of Investigation (FBI) report that they have taken many actions called for in the PRO-IP Act. For example, the act calls for two assistant U.S. attorneys to be assigned to each Computer Hacking and Intellectual Property Crime (CHIP) Unit. DOJ has assigned 97 Assistant U.S. Attorneys to work with CHIP units, with all 25 CHIP units having two or more attorneys assigned. FBI officials also report creating agent positions in accordance with the act, adding 31 agent positions to IP enforcement in fiscal year 2009 and an additional 20 IP positions for 2010. However, FBI officials observed the increase in IP dedicated agent positions has not correspondingly increased agent-hour charges for IP investigations, noting delays in funding, hiring, training and deploying IP-dedicated agents. Office of the IPEC staff report that they have taken steps to implement the PRO-IP Act. The office, located within the Office of Management and Budget, was recently established following the confirmation of the IPEC on December 4, 2009. The office includes the IPEC, an assistant, and four detailees from other federal agencies. Office of the IPEC staff report that the IPEC chaired the first meeting of the Interagency Intellectual Property Enforcement Advisory Committee on February 2, 2010. Moreover, the IPEC coordinated with other federal entities to deliver the 2010 Joint Strategic Plan on Intellectual Property Enforcement to Congress and the public on June 22, 2010, less than 7 months after the IPEC's confirmation. The purpose of the plan is to develop an interagency strategy to combat infringement of IP rights. In general, the joint strategic plan addressed each content requirement listed in the PRO-IP Act, but two enhancements could help to improve future plans: identifying implementing entities for all action items related to the plan's priorities and establishing resource estimates. In accordance with the act, the plan includes analyses of the economic, health, and safety threats posed by violations of IP rights. The plan also provides a description of the priorities that will carry out the plan's objectives and the means to be employed to achieve these priorities. While the act calls for the plan to identify implementing departments and agencies for all priorities, it did not do so for about one third of the action items aligned to the priorities. In addition, the plan did not include estimates of the resources needed to fulfill the plan's priorities because data collection and analysis are still in progress. GAO recommends that the IPEC, in consultation with the Interagency Intellectual Property Enforcement Advisory Committee, take steps to ensure that future joint strategic plans identify implementing departments and agencies for all priorities and related action items and establish resource estimates to carry out the plan's priorities.
GAO-11-39, Intellectual Property: Agencies Progress in Implementing Recent Legislation, but Enhancements Could Improve Future Plans
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
October 2010:
Intellectual Property:
Agencies Progress in Implementing Recent Legislation, but Enhancements
Could Improve Future Plans:
GAO-11-39:
GAO Highlights:
Highlights of GAO-11-39, a report to the congressional committees.
Why GAO Did This Study:
Intellectual property (IP) plays a significant role in the U.S.
economy. Enforcing IP laws involves many U.S. agencies, making
coordination essential. Under the Prioritizing Resources and
Organization for Intellectual Property Act of 2008 (PRO-IP Act),
Congress required the U.S. Attorney General, through the Department of
Justice (DOJ), to devote additional resources and undertake other
specific IP efforts. The PRO-IP Act also created the position of the
Intellectual Property Enforcement Coordinator (IPEC) to enhance
interagency coordination. The act mandates that GAO provide Congress
with a report on the efforts of DOJ and the IPEC.
This status report addresses DOJ and Office of the IPEC‘s efforts to
implement the act. The report also compares the 2010 Joint Strategic
Plan on Intellectual Property Enforcement to the content called for in
the PRO-IP Act. GAO examined relevant documents, interviewed agency
staff and officials, and compared agency actions and the 2010
strategic plan with the PRO-IP Act.
What GAO Found:
Officials from DOJ and its Federal Bureau of Investigation (FBI)
report that they have taken many actions called for in the PRO-IP Act.
For example, the act calls for two assistant U.S. attorneys to be
assigned to each Computer Hacking and Intellectual Property Crime
(CHIP) Unit. DOJ has assigned 97 Assistant U.S. Attorneys to work with
CHIP units, with all 25 CHIP units having two or more attorneys
assigned. FBI officials also report creating agent positions in
accordance with the act, adding 31 agent positions to IP enforcement
in fiscal year 2009 and an additional 20 IP positions for 2010.
However, FBI officials observed the increase in IP dedicated agent
positions has not correspondingly increased agent-hour charges for IP
investigations, noting delays in funding, hiring, training and
deploying IP-dedicated agents.
Office of the IPEC staff report that they have taken steps to
implement the PRO-IP Act. The office, located within the Office of
Management and Budget, was recently established following the
confirmation of the IPEC on December 4, 2009. The office includes the
IPEC, an assistant, and four detailees from other federal agencies.
Office of the IPEC staff report that the IPEC chaired the first
meeting of the Interagency Intellectual Property Enforcement Advisory
Committee on February 2, 2010. Moreover, the IPEC coordinated with
other federal entities to deliver the 2010 Joint Strategic Plan on
Intellectual Property Enforcement to Congress and the public on June
22, 2010, less than 7 months after the IPEC‘s confirmation. The
purpose of the plan is to develop an interagency strategy to combat
infringement of IP rights.
In general, the joint strategic plan addressed each content
requirement listed in the PRO-IP Act, but two enhancements could help
to improve future plans: identifying implementing entities for all
action items related to the plan‘s priorities and establishing
resource estimates. In accordance with the act, the plan includes
analyses of the economic, health, and safety threats posed by
violations of IP rights. The plan also provides a description of the
priorities that will carry out the plan‘s objectives and the means to
be employed to achieve these priorities. While the act calls for the
plan to identify implementing departments and agencies for all
priorities, it did not do so for about one third of the action items
aligned to the priorities. In addition, the plan did not include
estimates of the resources needed to fulfill the plan‘s priorities
because data collection and analysis are still in progress.
Figure: Timeline of Key IPEC and DOJ Efforts Related to the PRO-IP Act:
[Refer to PDF for image: timeline]
Fiscal year 2009:
October:
IPEC position created by PRO-IP Act.
September:
IPEC appointed.
Fiscal year 2010:
October:
FBI 2009 Annual Report delivered;
DOJ 2009 Annual Report delivered.
December:
IPEC confirmed.
February:
First Interagency Intellectual Property Enforcement Advisory Committee
meeting chaired by IPEC.
June:
Joint Strategic Plan delivered.
Source: GAO analysis.
[End of figure]
What GAO Recommends:
GAO recommends that the IPEC, in consultation with the Interagency
Intellectual Property Enforcement Advisory Committee, take steps to
ensure that future joint strategic plans identify implementing
departments and agencies for all priorities and related action items
and establish resource estimates to carry out the plan‘s priorities.
View [hyperlink, http://www.gao.gov/products/GAO-11-39] or key
components. For more information, contact Loren Yager at (202) 512-
4347 or yagerl@gao.gov.
[End of section]
Contents:
Letter:
Background:
DOJ and FBI Officials Report Taking Actions Called for by the PRO-IP
Act:
Office of the IPEC Staff Report Taking Steps to Implement the PRO-IP
Act:
2010 Joint Strategic Plan Generally Addressed PRO-IP Act Content
Requirements, but Two Enhancements Could Improve Future Plans:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: 2010 Joint Strategic Plan on Intellectual Property
Enforcement Priorities and Related Action Items:
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Related Products:
Table:
Table 1: Fiscal Year 2009, BJA Intellectual Property Enforcement,
Training, and Technical Assistance Program Grants:
Figures:
Figure 1: Timeline of Key IPEC and DOJ Efforts Related to the PRO-IP
Act:
Figure 2: IPEC Located within OMB:
Figure 3: Interagency Intellectual Property Enforcement Advisory
Committee Members as Provided by the PRO-IP Act:
Abbreviations:
BJA: Bureau of Justice Assistance:
CCIPS: Computer Crime and Intellectual Property Section:
CHIP: Computer Hacking and Intellectual Property:
DOJ: Department of Justice:
FBI: Federal Bureau of Investigation:
IP: intellectual property:
IPEC: Intellectual Property Enforcement Coordinator:
NIPLECC: National Intellectual Property Law Enforcement Coordination
Council:
OMB: Office of Management and Budget:
PRO-IP Act: Prioritizing Resources and Organization for Intellectual
Property Act of 2008:
STOP: Strategy for Targeting Organized Piracy:
USTR: U.S. Trade Representative:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
October 13, 2010:
The Honorable Patrick J. Leahy:
Chairman:
The Honorable Jeff Sessions:
Ranking Member:
Committee on the Judiciary:
United States Senate:
The Honorable John Conyers, Jr.
Chairman:
The Honorable Lamar S. Smith:
Ranking Member:
Committee on the Judiciary:
House of Representatives:
Intellectual property (IP) plays a significant role in the U.S.
economy, and the United States is an acknowledged leader in its
creation. IP is a category of legal rights that grants owners certain
exclusive rights to intangible assets or products of the human
intellect, such as inventions; literary and artistic works; and
symbols, names, images, and design. The federal government grants IP
protection through patents, copyrights, and trademarks, and takes
enforcement actions that range from seizing IP-infringing goods to
prosecuting alleged criminals. IP protection and enforcement efforts
cut across a wide range of U.S. agencies, making coordination
essential.
Under the Prioritizing Resources and Organization for Intellectual
Property Act of 2008[Footnote 1] (PRO-IP Act), Congress created the
position of the Intellectual Property Enforcement Coordinator (IPEC)
to serve within the Executive Office of the President. The act
outlines the IPEC's duties and includes specific efforts to enhance
interagency coordination, such as the development of a comprehensive
joint strategic plan. The PRO-IP Act also required the U.S. Attorney
General, through the Department of Justice (DOJ) and its Federal
Bureau of Investigation (FBI), to devote additional resources to IP
enforcement and to undertake other specific IP enforcement related
efforts.
The PRO-IP Act mandates that GAO provide Congress with a report on the
efforts, activities, and actions of the U.S. Attorney General and the
IPEC in achieving the goals and purposes of the act no later than 2
years after its enactment. Because the IPEC was not confirmed until
December 2009 and some agencies have only recently undertaken required
efforts, we agreed to provide a status report on efforts to implement
the act. Specifically, this report addresses efforts undertaken by DOJ
and the Office of the IPEC to implement requirements outlined in the
act.[Footnote 2] In addition, this report compares the 2010 Joint
Strategic Plan on Intellectual Property Enforcement to content called
for in the act.
To determine the status of the implementation of the requirements of
the PRO-IP Act that are assigned to the IPEC, DOJ, and the FBI, we
examined the act to identify the requirements assigned to each entity
and met with staff from the Office of the IPEC and officials from DOJ
and the FBI to discuss their implementation efforts. We requested that
these entities provide us with a written description of the status of
their efforts and describe any challenges they face relating to each
requirement under the act. Because of time limitations, we did not
independently verify all agency statements, but attributed these
statements accordingly. We compared each entity's efforts to those
called for in the act to determine the status of its implementation,
and then met with agency staff and officials to clarify our
observations. To compare the 2010 Joint Strategic Plan on Intellectual
Property Enforcement to the content requirements detailed in the PRO-
IP Act, we evaluated content from the plan against each content
requirement from Title III, Section 303 (e) and (f) to determine
whether each content requirement was addressed.
We conducted this performance audit from July 2010 to October 2010 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives. For additional
details regarding our scope and methodology, see appendix I.
Background:
The economic value of goods protected by copyrights, patents, and
trademarks makes them attractive targets for criminal networks.
[Footnote 3] Criminal violations of IP rights have potential negative
effects for U.S. innovation and investment, on the value and
reputation of individual companies, and for consumers who are put at
risk by substandard or dangerous products. Industry groups suggest
that counterfeiting and piracy are on the rise and that a broader
range of products--from auto parts to razor blades, medicines to
infant formula--are subject to counterfeit production. The illicit
nature of counterfeiting and piracy makes it extremely difficult to
estimate the economic impact of IP infringements, but research for
specific industries suggests that the problem is sizeable.[Footnote 4]
Eight key federal agencies, as well as entities within them, undertake
a wide range of activities in protecting IP rights. The agencies are
the Departments of Commerce, State, Justice, Health and Human
Services, and Homeland Security; the U.S. Trade Representative (USTR);
the U.S. Copyright Office; and the U.S. International Trade
Commission. In many cases, IP-related efforts represent a small part
of the agencies' much broader missions.
DOJ's U.S. attorneys' offices, Criminal Division, and the FBI
investigate and prosecute federal IP crimes. DOJ established the
Computer Hacking and Intellectual Property (CHIP) program, which
consists of specially-trained assistant U.S. attorneys to pursue IP
cases. Each of the 93 U.S. attorneys offices throughout the country
have assistant U.S. attorneys designated as CHIP coordinators, who are
available to work on IP cases. In addition, DOJ has created CHIP units
in 25 U.S. attorney's offices with histories of large IP case loads.
DOJ's Computer Crime and Intellectual Property Section (CCIPS)--based
in Washington, D.C.--consists of prosecutors devoted to enforcing
computer crime and IP laws. CCIPS attorneys prosecute cases, assist
prosecutors and other investigative agents in the field, and help
develop and implement an overall criminal enforcement strategy. The
FBI's Cyber Division oversees the bureau's IP enforcement efforts,
though not all of its IP investigations are cyber-related.[Footnote 5]
FBI IP investigations are primarily conducted in 21 of the FBI's 56
field offices and the FBI's IP Rights Unit located at the National
Intellectual Property Rights Coordination Center.[Footnote 6]
Over the years, Congress and the administration have created
interagency mechanisms to coordinate federal IP law enforcement
efforts. In 1999, Congress created an interagency mechanism, called
the National Intellectual Property Law Enforcement Coordination
Council (NIPLECC), to coordinate U.S. law enforcement efforts to
protect and enforce IP rights in the United States and abroad.
[Footnote 7] Officials from seven federal entities were members of
NIPLECC.[Footnote 8] In October 2004, the President launched a
separate initiative--the Strategy for Targeting Organized Piracy
(STOP)--which included for the most part the same agencies as NIPLECC
and was intended to target cross-border trade in tangible goods and
strengthen U.S. government and industry IP enforcement actions.
Congress later passed legislation in December 2004 to enhance
NIPLECC's mandate and created the position of the Coordinator for
International Intellectual Property Enforcement, located within the
Department of Commerce, to head NIPLECC.[Footnote 9] In November 2006
we reported that NIPLECC continued to face persistent difficulties,
creating doubts about its ability to carry out its mandate.[Footnote
10] We also noted that while STOP had brought attention and energy to
IP efforts within the U.S. government because of its executive office
status, STOP had limited usefulness as a tool to prioritize, guide,
implement, and monitor the combined efforts of multiple agencies. GAO
has conducted a variety of assignments related to IP protection and
enforcement over the last several years. A list of GAO reports and
testimonies on IP protection since 2004 is included at the end of this
report.
The PRO-IP Act enacted several changes intended to address weaknesses
in prior coordinating structures. For example, the PRO-IP Act
specifically required the new interagency advisory committee to
prepare a joint strategic plan that addresses key elements of an
effective national strategic plan, building in mechanisms for
accountability and oversight. Also, the PRO-IP Act required the IPEC
to submit the joint strategic plan to committees of Congress every
third year after the development of the first strategic plan. In
addition, the PRO-IP Act places leadership in the Executive Office of
the President, within the Office of Management and Budget (OMB)--a
status similar to that of STOP. The PRO-IP Act also repealed NIPLECC
upon confirmation of the IPEC by the Senate.
DOJ and FBI Officials Report Taking Actions Called for by the PRO-IP
Act:
Officials from DOJ and the FBI report that they have taken actions
called for in the PRO-IP Act. For example, consistent with efforts
authorized by the act, DOJ officials reported that in fiscal 2009 the
department awarded 10 grants, totaling approximately $2 million, to
fund IP enforcement efforts. In addition, they reported that DOJ has
assigned 97 assistant U.S. attorneys to work with CHIP units and that
all CHIP units have two or more attorneys assigned as of August 2010.
FBI officials also reported that they have created agent positions
dedicated to investigating IP crimes, with 31 agent positions funded
in fiscal year 2009 and an additional 20 agent positions funded in
fiscal year 2010. FBI officials explained that delays in receiving
funding for new agent positions and the time needed to hire, train,
and deploy agents has meant that new agent positions have not
immediately increased agent time spent on investigation. FBI officials
also reported that IP-dedicated agents are sometimes used for other
investigations but officials reported that they are monitoring IP
staff usage and will take corrective action, if needed. DOJ officials
reported that the U.S. Attorney General's Organized Crime Council
Action Plan emphasizes IP crimes as part of an integrated approach to
dealing with the multiple areas affected by organized crime. Finally,
both DOJ and FBI officials have submitted reports to Congress on
actions taken under the PRO-IP Act.
DOJ Awarded IP Grants to State and Local Law Enforcement Agencies:
[Side bar:
"The Office of Justice Programs of the Department of Justice may make
grants to eligible State or local law enforcement entities, including
law enforcement agencies of municipal governments and public
educational institutions, for training, prevention, enforcement, and
prosecution of intellectual property theft and infringement crimes..."
Source: Section 401(b), P.L. 110-403. End of side bar]
DOJ officials report that they have used the Intellectual Property
Enforcement, Training, and Technical Assistance Program to fund
eligible state and local IP efforts consistent with authority provided
in the PRO-IP Act. For fiscal year 2009, the Office of Justice
Programs' Bureau of Justice Assistance (BJA) awarded 10 grants--
totaling $2,005,692--to support IP efforts. DOJ funded these fiscal
year 2009 grants from the Economic, High-Tech, and Cyber Crime
Prevention funds.[Footnote 11] BJA awarded eight of these grants to
state and local agencies to directly assist with IP prevention and
enforcement efforts. For example, BJA awarded the city of Los Angeles
$199,995 to support the city's anti-piracy unit. DOJ officials noted
that it awarded grants to two national organizations to jointly
develop and deliver an IP curriculum for presentation to federal,
state, local, and tribal law enforcement and prosecutors at 10
regional locations. For information on recipients and grant amounts
see table 1 below.
Table 1: Fiscal Year 2009, BJA Intellectual Property Enforcement,
Training, and Technical Assistance Program Grants:
Agency receiving grant: Virginia Office of the Attorney General;
Description: Support IP training and enforcement;
Award amount: $17,575.
Agency receiving grant: Bronx County District Attorney, NY;
Description: Target stores selling counterfeit goods;
Award amount: $43,718.
Agency receiving grant: North Carolina Department of the Secretary of
State;
Description: Purchase equipment to develop IP leads;
Award amount: $44,485.
Agency receiving grant: Chesterfield County Police Department, VA;
Description: Investigate IP crimes connections;
Award amount: $199,919.
Agency receiving grant: City of Los Angeles Police Department, CA;
Description: Support anti-piracy unit;
Award amount: $199,995.
Agency receiving grant: Los Angeles County Sheriff's Department, CA;
Description: Enhance IP law enforcement;
Award amount: $200,000.
Agency receiving grant: Mississippi Attorney General's Office;
Description: Enhance IP law enforcement;
Award amount: $200,000.
Agency receiving grant: New York City Mayors Office;
Description: Hire additional IP investigators;
Award amount: $200,000.
Agency receiving grant: National White Collar Crime Center (NW3C);
Description: Partnership to develop IP curriculum;
Award amount: $450,000.
Agency receiving grant: National Association of Attorneys General,
D.C.;
Description: Partnership to develop IP curriculum;
Award amount: $450,000.
Total funding for 10 grantees: $2,005,692.
Source: GAO analysis of BJA grant award announcement.
[End of table]
DOJ officials reported that BJA is currently reviewing applications
from state and local law enforcement entities for $4 million in fiscal
year 2010 funds[Footnote 12] under the Intellectual Property
Enforcement, Training, and Technical Assistance Program. DOJ intended
to award all of these grants by September 30, 2010.
DOJ officials reported several challenges hampering their efforts to
aid state and local law enforcement entities with their IP efforts.
First, officials cited the lack of knowledge among state and local law
enforcement and prosecutors about the importance of IP protection.
Officials noted a broad misperception of IP as a "victimless" crime.
Officials state that when cases cross jurisdictional lines, this lack
of knowledge can lead partner police agencies not to take IP
investigations as seriously as warranted. Further, this lack of
knowledge can result in reluctance on the part of some prosecutors to
file felony charges against suspects. Finally officials cited limited
resources, competing priorities, and collateral duties that sometimes
impede support for IP efforts at state and local levels.
FBI and DOJ Increased IP Staffing and Training:
[Side bar:
"Subject to the availability of appropriations to carry out this
subsection, the Attorney General, in consultation with the Director of
the Federal Bureau of Investigation, shall, with respect to crimes
related to theft of intellectual property... ensure that there are at
least 10 additional operational agents of the Federal Bureau of
Investigation designated to support the Computer Crime and
Intellectual Property Section [CCIPS] of the Criminal Division of the
Department of Justice in the investigation and coordination of
intellectual property crimes..." Source: 402(a)(1), P.L. 110-403. End
of side bar]
FBI officials reported increasing the number of FBI agents dedicated
to investigating IP crimes in support of DOJ's CCIPS. FBI officials
noted that their fiscal year 2009 appropriation[Footnote 13] provided
funding for at least five full-time FBI agents dedicated to working
with DOJ's CCIPS. In consultation with CCIPS, FBI officials at
headquarters created the Intellectual Property Rights Unit, locating
it at the National Intellectual Property Rights Center in Virginia. As
of May 2010, this FBI unit was staffed by six agents, consisting of
three unit agents dedicated solely to investigating criminal IP
crimes, two supervisory agents guiding unit agents and field office IP
programs, and a supervisory agent unit chief. The three unit agents
focus on investigating complex, multi-district cases, as well as on
working cases with partner agencies. The Intellectual Property Rights
Unit is also supported by two management program analysts, one staff
operations specialist, and intelligence analyst support from the FBI
Cyber Intelligence section. FBI officials also noted that the bureau
had recently dedicated FBI agents in the field to IP enforcement and
these agents also support CCIPS.
[Side bar:
"Subject to the availability of appropriations to carry out this
subsection, the Attorney General, in consultation with the Director of
the Federal Bureau of Investigation, shall, with respect to crimes
related to theft of intellectual property— ensure that any Computer
Hacking and Intellectual Property Crime [CHIP] Unit in the Department
of Justice is supported by at least 1 agent of the Federal Bureau of
Investigation (in addition to any agent supporting such unit as of the
date of the enactment of this Act) to support such unit for the
purpose of investigating or prosecuting intellectual property
crimes..." Source: 402(a)(2), P.L. 110-403. End of side bar]
All 25 CHIP units, according to FBI officials, are supported by at
least one FBI agent. FBI officials reported that prior to fiscal 2009,
although FBI agents worked IP cases, it did not have agents dedicated
to IP enforcement and that the size of the FBI's IP enforcement effort
was small relative to other efforts. FBI officials noted that fiscal
year 2009 funding allowed it to create 31 IP-dedicated agent
positions, and fiscal year 2010 funding allowed it to create an
additional 20 IP-dedicated agent positions.[Footnote 14] The increase
in IP-dedicated agents resulted in 22 of 25 CHIP units having at least
one assigned agent dedicated to IP investigations in fiscal year 2010.
Specifically, 11 of the 22 CHIP units were each assigned one IP-
dedicated agent and the remaining 11 CHIP units were assigned two to
six IP-dedicated agents. FBI officials reported that they appointed a
special agent to act as an IP coordinator for each of the 3 remaining
CHIP units to directly support those units.
Although the FBI has added agents dedicated to IP enforcement, FBI
officials reported that the number of "agent years" charged to IP
investigations has not correspondingly increased. According to FBI
officials, field IP investigations totaled 20.5 agent years in fiscal
year 2008 even though there were no IP-dedicated agents in fiscal year
2008. Although the FBI had 46 dedicated IP field agent positions in
August 2010, FBI officials reported for the first 10.5 months of
fiscal year 2010 (through August 14, 2010), field agents charged only
26.2 agent years to IP investigations. However, FBI officials noted at
the end of August 2010, there were 37 IP-dedicated field agents
actively charging time to IP investigations.[Footnote 15]
FBI officials noted several factors that contributed to the number of
"agent years" charged to IP investigations not increasing
correspondingly with the increase in IP-dedicated agent positions.
First, FBI officials noted that delays in funding, hiring, training,
and deploying new agent positions reduces the time available for new
agents to perform IP investigations. FBI officials explained that the
bureau received a fiscal year 2009 supplemental appropriation in March
2009, which provided for 31 agent positions, including 26 field agent
positions to work solely on IP investigations. FBI officials cited a 6
to 9 month lag in filling some of these positions including time to
hire, train, and deploy agents to field offices. Similarly, FBI
officials noted that the FBI received fiscal year 2010 funding for 20
additional IP-dedicated agent positions in December 2010, and again
time for hiring, training, and deploying agents reduced the time
available for IP investigations. Second, FBI officials acknowledged
that although they have increased the number of agents dedicated to
IP, field office supervisory agents sometimes use these agents for
other non-IP related investigations. FBI officials reported that they
are monitoring FBI field office usage of IP-dedicated agent time.
Those offices found to have underutilized IP-dedicated staff at the
end of fiscal year 2010 will be required to implement a strategy to
improve IP staff utilization.
[Side bar:
"Subject to the availability of appropriations to carry out this
subsection, the Attorney General, in consultation with the Director of
the Federal Bureau of Investigation, shall, with respect to crimes
related to theft of intellectual property— ensure that all Computer
Hacking and Intellectual Property Crime Units located at an office of
a United States Attorney are assigned at least 2 Assistant United
States Attorneys responsible for investigating and prosecuting
computer hacking or intellectual property crimes..." Source: Section
402(a)(3), P.L. 110-403. End of side bar]
DOJ officials reported that as of August 2010, there are two or more
assistant U.S. attorneys assigned to all 25 CHIP units. Overall, DOJ
assigned 97 assistant U.S. attorneys to work with the various CHIP
units and is in the process of hiring and placing an additional 15
assistant U.S. attorneys. However, DOJ officials also noted that
ordinary job turnover at individual offices occasionally makes it
difficult to maintain two assistant U.S. attorneys at each CHIP unit.
[Side bar:
"Subject to the availability of appropriations to carry out this
subsection, the Attorney General, in consultation with the Director of
the Federal Bureau of Investigation, shall, with respect to crimes
related to theft of intellectual property— ensure the implementation
of a regular and comprehensive training program..." Source: Section
402(a)(4), P.L. 110-403. End of side bar]
FBI officials reported that the bureau's annual IP rights conference,
scheduled every September, has become a comprehensive IP rights
training program for IP-dedicated agents and others. For example, in
2009 the FBI conducted a 3-day training session for IP-dedicated
agents as well as other field agents and intelligence analysts.
Training topics included statutory authorities, DOJ enforcement
efforts, major case initiatives, case studies, intelligence analysis
for IP rights cases, federal partner efforts, and industry subject
matter expert presentations.
FBI officials reported that the annual IP rights training for 2010
will include both a basic training course for newly placed agents and
an advanced course for experienced agents. The three agents acting as
IP coordinators will also receive this annual training to ensure
adequate support for CHIP units.
FBI officials also noted that currently all new agents receive an
overview of the laws governing IP violations during new agents
training at the FBI academy. According to these officials, the FBI is
in the process of developing an expanded IP curriculum for new agents.
In addition, all agents on a cyber career track receive additional IP
specialized training during the 2-week post new agents training
program. This training consists of an IP rights program overview, PRO-
IP Act overview, case initiation and investigative techniques,
guidance regarding the importance of interagency partnerships, and the
benefits of industry coordination efforts.
DOJ's Plans Address Relationship between Organized Crime and IP
Offenses:
DOJ officials reported that the department has incorporated IP
concerns into the U.S. Attorney General's Law Enforcement Strategy for
Combating Organized Crime. The strategy establishes an investigation
and prosecution framework and includes marshaling information and
intelligence, and prioritizing and targeting organized crime threats.
[Side bar:
"Subject to the availability of appropriations to carry out this
subsection—the Attorney General, through the United States Attorneys‘
Offices, the Computer Crime and Intellectual Property section, and the
Organized Crime Racketeering section of the Department of Justice, and
in consultation with the Federal Bureau of Investigation and other
Federal law enforcement agencies, such as the Department of Homeland
Security, shall create and implement a comprehensive, long range plan
to investigate and prosecute international organized crime syndicates
engaging in or supporting crimes relating to the theft of intellectual
property." Source: Section 402(b), P.L. 110-403. End of side bar]
In addition, DOJ officials reported that the U.S. Attorney General's
Organized Crime Council[Footnote 16] Action Plan addresses the
relationship between organized crime and IP offenses. The council
identifies specific goals in its annual action plan, and has
identified IP crimes as a priority since 2008. The 2010 action plan
emphasizes IP crimes as part of an integrated approach to dealing with
the multiple areas affected by organized crime and identifies the IP-
specific goals for understanding criminal organizations engaged in IP
violations and coordinating the substantial efforts law enforcement is
making in both areas. The plan calls on DOJ to work with investigative
agencies to focus efforts on known counterfeit product distribution
networks with the goal of tracing the source of products back to
countries where the goods are produced. The plan also calls for
sharing information and cross-training to allow personnel to identify
IP violations that involve organized crime.
The first annual DOJ PRO-IP report[Footnote 17] detailed several
approaches the department intended to deploy to integrate IP
enforcement with the departments' overall international organized
crime strategy. The plan calls for CCIPS to coordinate with the
Organized Crime and Racketeering Section and other federal agencies
through the International Organized Crime Intelligence Operations
Center to develop and implement a mechanism to address intelligence
gaps as they relate to IP, among other items. The plan further noted
that the CCIPS' Intellectual Property Rights Unit has detailed a
senior attorney to provide legal advice and guidance and coordinate IP
cases involving the judicial process and other prosecutorial
activities. It also called for the CCIPS and other relevant
participating federal agencies to contribute critical IP-related
intelligence and case information.
DOJ officials noted that the department expects to see an increase in
the number of IP cases developed from traditional organized crime
investigations. Further, DOJ officials expected an increase in
awareness of U.S. business and Department of State personnel about the
role of organized criminal enterprises in IP offenses. Officials noted
that integrating IP investigations with traditional organized crime
investigations requires coordination between DOJ components that have
not traditionally interacted on specific cases. Officials observe that
close coordination between the work of investigators and prosecutors
handling organized crime and IP crimes creates a much better position
for those involved to identify connections between organized crimes
and IP crimes.
DOJ and FBI Provide Annual IP Reports:
[Side bar:
"...annually—the Attorney General shall submit a report to Congress on
actions taken to carry out this title. The initial report required
under this subsection shall be submitted by May 1, 2009. All
subsequent annual reports shall be submitted by May 1st of each fiscal
year thereafter. The report required under this subsection may be
submitted as part of the annual performance report of the Department
of Justice..." Source: Section 404(a), P.L. 110-403. End of side bar]
DOJ officials reported that the department submitted its report on
actions taken to carry out Title IV of the PRO-IP Act to Congress on
October 13, 2009. DOJ officials noted that the act provided two
options for submitting the report--DOJ can submit the report by May 1
or as part of its annual performance report, which is filed annually
in October. They further noted that there is no method to gather
statistical data for the report outside the current fiscal year
structure. DOJ officials reported that the department provided its
first report in October 2009 (and separate from its annual performance
report) and intends to submit the fiscal year 2010 report in early
October 2010.
[Side bar:
"The first report required to be submitted by the Attorney General
under subsection (a) shall include a summary of the efforts,
activities, and resources the Department of Justice has allocated in
the 5 years prior to the date of enactment of this Act, as well as the
1-year period following such date of enactment, to the enforcement,
investigation, and prosecution of intellectual property crimes..."
Source: Section 404(b), P.L. 110-403. End of side bar]
DOJ officials reported that the department's first report contained
information on ongoing activities as well as historical data about the
enforcement, investigation, and prosecution of IP crimes. Officials
noted that the historical information largely duplicated information
previously reported to Congress in the department's annual performance
report and in reports from the National Intellectual Property Law
Enforcement Coordination Council.
[Side bar:
"...annually... the Director of the Federal Bureau of Investigation
shall submit a report to Congress on actions taken to carry out this
title. The initial report required under this subsection shall be
submitted by May 1, 2009. All subsequent annual reports shall be
submitted by May 1st of each fiscal year thereafter. The report
required under this subsection may be submitted as part of the annual
performance report of the Department of Justice..." Source: Section
404(c), P.L. 110-403. End of side bar]
Separately, FBI officials reported that the bureau submitted its first
required report on actions taken under Title IV of the PRO-IP Act in
October 2009. Like DOJ, FBI officials noted that its October 2009
report was in line with the timing of DOJ's annual performance report.
[Side bar:
"The first report required to be submitted by the Director of the
Federal Bureau of Investigation under subsection (c) shall include a
summary of the efforts, activities, and resources the Federal Bureau
of Investigation has allocated in the 5 years prior to the date of
enactment of this Act, as well as the 1-year period following such
date of enactment to the enforcement, investigation, and prosecution
of intellectual property crimes..." Source: 404(d), P.L. 110-403. End
of side bar]
The October 2009 FBI report included a presentation of the number of
different types of investigative accomplishments from fiscal year 2004
through fiscal year 2009. The report also presented discussions of PRO-
IP Act funding, training for PRO-IP Act special agents, and efforts
and activities in support of the FBI's IP rights program. FBI
officials reported that they intend to submit their next annual report
in October 2010.
Office of the IPEC Staff Report Taking Steps to Implement the PRO-IP
Act:
Office of the IPEC staff reported that the IPEC and the Interagency
Intellectual Property Enforcement Advisory Committee have taken steps
to implement the PRO-IP Act. For example, the Office of the IPEC was
established following the appointment and confirmation of the IPEC.
The office consists of the IPEC and four temporarily detailed
employees with expertise in IP enforcement. In addition, staff
reported that the IPEC has begun to carry out its duties required by
the PRO-IP Act, such as facilitating the issuance of IP policy
guidance and establishing and chairing the Interagency Intellectual
Property Enforcement Advisory Committee. Moreover, the IPEC led
members of the advisory committee in developing a joint strategic plan
required by the PRO-IP Act. Because the IPEC was not confirmed until
December 4, 2009, the 2010 joint strategic plan was delivered to
Congress and the public on June 22, 2010, rather than October 13,
2009, as called for by the act.
Figure 1: Timeline of Key IPEC and DOJ Efforts Related to the PRO-IP
Act:
[Refer to PDF for image: timeline]
Fiscal year 2009:
October:
IPEC position created by PRO-IP Act.
September:
IPEC appointed.
Fiscal year 2010:
October:
FBI 2009 Annual Report delivered;
DOJ 2009 Annual Report delivered.
December:
IPEC confirmed.
February:
First Interagency Intellectual Property Enforcement Advisory Committee
meeting chaired by IPEC.
June:
Joint Strategic Plan delivered.
Source: GAO analysis.
[End of figure]
Office of the IPEC Established:
[Side bar:
"The President shall appoint, by and with the advice and consent of
the Senate, an Intellectual Property Enforcement Coordinator (in this
title referred to as the …IPEC‘) to serve within the Executive Office
of the President..." Source: Section 301(a), P.L. 110-403. End of side
bar]
On October 13, 2008, the PRO-IP Act created the position of the IPEC,
placing it within OMB, in the Executive Office of the President (see
fig. 2). The President nominated Victoria A. Espinel as the first IPEC
on September 25, 2009, and the Senate confirmed Espinel on December 4,
2009. The Office of the IPEC has a relatively small but experienced
staff. In addition to the IPEC, the office includes one assistant who
is a permanent employee and four employees temporarily detailed from
the U.S. Patent and Trademark Office; Department of Homeland
Security's Office of Policy; DOJ's Civil Rights Division; and DOJ's
U.S. Attorney's Office for the Central District of California, Cyber,
and Intellectual Property Crimes Section. Staff reported that the
attorney detailed from the U.S. Patent and Trademark Office has
experience handling all aspects of IP litigation. They also reported
that the staff member detailed from the Department of Homeland
Security has significant trade and IP related experience. In addition,
both staff detailed from DOJ have criminal prosecutor experience, and
one has experience as a CHIP unit attorney.
Figure 2: IPEC Located within OMB:
[Refer to PDF for image: illustration]
Top level:
Executive Office of the President:
* Office of Management and Budget.
Second level, reporting to the Office of Management and Budget:
* OMB-wide Support Offices;
* Resource Management Offices;
* Statutory Offices:
- Office of Federal Financial Management;
- Office of Federal Procurement Policy;
- Office of E-Government and Information Technology;
- Office of Information and Regulatory Affairs;
- Intellectual Property Enforcement Coordinator.
Source: Office of Management and Budget organization chart.
[End of figure]
IPEC Facilitating Issuance of IP Policy Guidance:
[Side bar:
" The IPEC shall—facilitate the issuance of policy guidance to
departments and agencies on basic issues of policy and interpretation,
to the extent necessary to assure the coordination of intellectual
property enforcement policy and consistency with other law..." Source:
Section 301(b)(1)(D), P.L. 110-403. End of side bar]
Staff from the Office of the IPEC reported that the IPEC has begun to
facilitate the issuance of policy guidance by coordinating discussions
on IP enforcement policy issues. For example, the Office of the IPEC
worked with the departments and agencies involved in the development
of the 2010 Joint Strategic Plan on Intellectual Property Enforcement
to resolve IP enforcement policy issues and to incorporate the
administration's position on these issues into the plan. Staff
reported that these discussions resulted in developing administration
policies, which were reflected in several areas of the joint strategic
plan, including the action item titled Facilitating Cooperation to
Reduce Intellectual Property Infringement Occurring Over the Internet.
The IPEC has also provided guidance in public statements on a variety
of IP enforcement issues.
Office of the IPEC staff noted that because the office is located
within OMB, it has had the opportunity to review and shape policy
guidance and other policy statements provided by the departments and
agencies involved in IP enforcement. For example, the office routinely
participates in discussions on IP related issues when such issues are
under consideration within the OMB. Staff reported that the office
provides policy input on the drafts of IP related materials under
review, such as Federal Register notices, proposed rules, and
memoranda. Further, the office has requested that federal agencies
keep the office informed about all significant IP enforcement issues.
Interagency Advisory Committee Established and Chaired by the IPEC:
[Side bar:
"The IPEC shall—chair the interagency intellectual property
enforcement advisory committee..."
"There is established an interagency intellectual property enforcement
advisory committee composed of the IPEC, who shall chair the
committee, and—Senate-confirmed representatives—of departments and
agencies who are involved in intellectual property enforcement..."
"The advisory committee—shall develop the Joint Strategic Plan against
counterfeiting and infringement...“ Source: Section 301(b)(1)(A) &
Section 301(b)(3)(A) and (B), P.L. 110-403. End of side bar]
Office of the IPEC staff reported that the IPEC has convened and
chaired two meetings of the Interagency Intellectual Property
Enforcement Advisory Committee. Staff reported that the committee is
currently composed of the IPEC and Senate-confirmed representatives of
the departments and offices listed in the PRO-IP Act (see figure 3).
[Footnote 18] They noted that two committee meetings, on February 2,
2010 and May 14, 2010, took place to discuss the formulation of the
joint strategic plan. Staff also reported that the IPEC convened
dozens of other meetings with agency officials from the member
agencies to identify issues to be addressed in the strategy, to
discuss recommendations for addressing each issue, and to develop
plans for formulating and implementing each component of the joint
strategic plan. Staff stated that committee members also participated
in weekly teleconferences, and individual committee members and their
designees communicate regularly in person and by phone and e-mail.
Figure 3: Interagency Intellectual Property Enforcement Advisory
Committee Members as Provided by the PRO-IP Act:
[Refer to PDF for image: illustration]
Interagency Intellectual Property Enforcement Advisory Committee:
* Office of Management and Budget:
- Intellectual Property Enforcement Coordinator (Chair);
* Copyright Office;
* Department of Agriculture;
* Department of Commerce:
- U.S. Patent and Trademark Office;
- Other relevant units;
* Department of Health and Human Services:
- Food and Drug Administration;
* Department of Homeland Security:
- U.S. Customs and Border Protection;
- U.S. Immigration and Customs Enforcement;
* Department of Justice:
- Federal Bureau of Investigation: Criminal Division;
Other relevant units;
* Department of State:
- U.S. Agency for International Development;
- Bureau of International Narcotics Law Enforcement;
* Office of the U.S. Trade Representative;
* Any other agencies appointed by the President.
Source: GAO analysis Pro-IP Act; Art Resources (clip art).
[End of figure]
The IPEC Coordinated and Assisted with Developing and Implementing the
Joint Strategic Plan:
[Side bar:
"The IPEC shall—coordinate the development of the Joint Strategic Plan
against counterfeiting and infringement by the advisory committee..."
" During the development of the joint strategic plan, the IPEC shall—
provide assistance to, and coordinate the meetings and efforts of, the
appropriate officers and employees of departments and agencies
represented on the advisory committee—who are involved in intellectual
property enforcement..." Source: Section 301(b)(1)(B) & Section
303(c)(1),P.L. 110-403. End of side bar]
Staff from the Office of the IPEC reported that the IPEC coordinated
the development of the 2010 Joint Strategic Plan on Intellectual
Property Enforcement and has begun assisting departments and agencies
involved in implementing the plan. Staff reported that after the IPEC
was confirmed, she brought the departments and agencies involved in IP
enforcement together to draft the joint strategic plan. They said
that, the IPEC, as the chair of the Interagency Intellectual Property
Enforcement Advisory Committee, and the Office of the IPEC have
actively coordinated the efforts of these departments, agencies, and
White House offices to identify and prioritize IP enforcement issues,
and then to develop action plans to address the issues. Staff reported
that in addition to convening formal Interagency Intellectual Property
Enforcement Advisory Committee meetings, the IPEC convened several
dozen meetings and many other communications with participating agency
officials.
[Side bar:
"During the development of the joint strategic plan, the IPEC—may
consult with private sector experts in intellectual property
enforcement in furtherance of providing assistance to the members of
the advisory committee..." Source: Section 303(c)(2), P.L. 110-403.
End of side bar]
Office of the IPEC staff reported that during the development of the
joint strategic plan, they met with experts from various industry
sectors to hear their views regarding the mechanisms of infringement
and how illegal products are made, transported, and sold, as well as
to collect information regarding the mechanisms for preventing
infringement and its detection. Staff reported that they met with
hundreds of companies, trade associations, and other organizations
representing a diverse range of stakeholders[Footnote 19] who shared
their experience and expertise on IP enforcement issues. While the
majority of these meetings took place in Washington, D.C., the IPEC
also traveled around the country to hear from industries affected by
IP infringement such as counterfeiting and piracy. The office also
issued a Federal Register notice seeking comments from the public,
including the private sector, on IP infringement and asking for its
help in shaping the administration's strategy. Staff reported
receiving more than 1,600 responses and reviewing each response.
[Side bar:
"The IPEC shall—assist, at the request of the departments and agencies—
in the implementation of the Joint Strategic Plan..." Source: Section
301(b)(1)(C), P.L. 110-403. End of section]
Staff from the Office of the IPEC also reported that the
administration has already begun the process of assisting departments
and agencies with implementation of the joint strategic plan. Staff
reported that before the plan was issued the office met with the
agencies responsible for the subject matter covered by each of the
action items to formulate a detailed plan for implementing each action
item.
IPEC Reporting on IP Enforcement Programs:
[Side bar:
"The IPEC shall—report to the President and report to Congress, to the
extent consistent with law, regarding domestic and international
intellectual property enforcement programs..."
"The IPEC shall—report to Congress... on the implementation of the
Joint Strategic Plan, and make recommendations, if any and as
appropriate, to Congress for improvements in Federal intellectual
property laws and enforcement efforts..."
"Not later than December 31 of each calendar year beginning in 2009,
the IPEC shall submit a report on the activities of the advisory
committee during the preceding fiscal year. The annual report shall be
submitted to Congress, and disseminated to the people of the United
States..." Source: Section 301(b)(1)(E) and (F) & Section 304(a),
P.L. 110. End of side bar]
The IPEC has reported to the President and Congress on the status of
domestic and international IP enforcement programs through the 2010
joint strategic plan. Two sections in the plan provide descriptions of
the domestic and international IP enforcement programs undertaken by
the agencies with significant IP enforcement responsibilities.
[Footnote 20] Many of the action items listed in the plan also include
a description of existing programs and recommend ways in which the
U.S. government can improve its efforts under those programs. For
example, one action item titled Comprehensive Review of Existing
Intellectual Property Laws to Determine Needed Legislative Changes
describes in detail the administration's plan to conduct an initial
review of existing laws to identify any gaps in enforcement
authorities.
Staff from the Office of the IPEC reported that the IPEC plans to
submit the first annual report to Congress on the activities of the
Interagency Intellectual Property Enforcement Advisory Committee,
including the advisory committee's progress towards implementing the
joint strategic plan, in December 2010. Staff noted that a December
2009 annual report was not submitted as required by the PRO-IP Act
because the IPEC was not confirmed until December 4, 2009.
Agencies Carried Out Duties Related to the Development of the Joint
Strategic Plan:
[Side bar:
"In the development and implementation of the joint strategic plan,
the heads of the departments and agencies— shall...
"... designate personnel with expertise and experience in intellectual
property enforcement matters to work with the IPEC and other members
of the advisory committee...
" ... share relevant department or agency information with the IPEC
and other members of the advisory committee, including statistical
information on the enforcement activities of the department or agency
against counterfeiting or infringement, and plans for addressing the
joint strategic plan, to the extent permitted by law, including
requirements relating to confidentiality and privacy, and to the extent
that such sharing of information is consistent with Department of
Justice and other law enforcement protocols for handling such
information." Source: Section 303(d)(1) and (2), P.L. 110-403. End of
side bar]
Staff from the Office of the IPEC reported that departments and
agencies involved in IP enforcement worked collaboratively with the
IPEC and carried out duties related to the development of the joint
strategic plan, including designating personnel and sharing
information.[Footnote 21] The IPEC also worked with other offices
within the White House, including the Office of Science and Technology
Policy and the Domestic Policy Council, among others. Staff noted that
at each stage of the development of the joint strategic plan, the
designated personnel drew on their expertise to provide input on the
ideas, recommendations, and drafts that the Office of the IPEC
circulated among the departments and agencies. They also noted that
the departments and agencies were forthcoming with agency information,
including statistical information on their enforcement activities, to
the extent that they were permitted to do so by law.
2010 Joint Strategic Plan on Intellectual Property Enforcement
Delivered:
[Side bar:
"Not later than 12 months after the date of the enactment of this Act,
and not later than December 31 of every third year thereafter, the
IPEC shall submit the joint strategic plan to the Committee on the
Judiciary and the Committee on Appropriations of the Senate, and to
the Committee on the Judiciary and the Committee on Appropriations of
the House of Representatives."
"The joint strategic plan shall be posted for public access on the
website of the White House, and shall be disseminated to the public
through such other means as the IPEC may identify." Source: Section
303(b) and (g), P.L. 110-403. End of side bar]
The Office of the IPEC delivered the 2010 Joint Strategic Plan on
Intellectual Property Enforcement to the Congress on June 22, 2010.
The PRO-IP Act was enacted on October 13, 2008, and called for the
first joint strategic plan to be delivered to Congress within 1 year.
However, as previously mentioned, the IPEC was not confirmed until
December 4, 2009, after the date the first joint strategic plan was
due to Congress. The Office of the IPEC reported making the 2010 joint
strategic plan available to the public by placing it on the White
House Web site.[Footnote 22]
2010 Joint Strategic Plan Generally Addressed PRO-IP Act Content
Requirements, but Two Enhancements Could Improve Future Plans:
In general, the 2010 Joint Strategic Plan on Intellectual Property
Enforcement addressed each content requirement listed in the PRO-IP
Act, but two enhancements could help to improve future plans:
identifying implementing departments and agencies for all action items
related to the priorities identified for carrying out the plan's
objectives and establishing resource estimates necessary to fulfill
those objectives. The purpose of the plan is to develop an interagency
strategy to combat infringement of IP rights. Joint strategic plans
are required every 3 years, and the first plan was released less than
7 months after the confirmation of the IPEC. This first plan included
analysis by outside entities of the economic, health, and safety
threats posed by violations of IP rights. The plan also provided a
description of priorities (called "categories of focus") for carrying
out the plan's objectives and a description of the means or "action
items" to be employed to achieve these priorities. Additionally, the
plan established five performance indicators for IP protection and
enforcement and acknowledged that this initial list is subject to
modification based on the U.S. government's experience collecting and
analyzing indicators. While the act calls for the plan to identify
implementing departments and agencies for all priorities, it did not
identify implementing entities for all action items aligned to the
priorities. For example, responsibilities for about a third of the
action items were assigned to the U.S. government generally instead of
to specific departments and agencies. In addition, the plan included a
strategy for data collection and analysis needed to establish future
resource estimates; however, it did not provide actual resource
estimates needed to fulfill the priorities of the plan.
Threat Analysis of IP Rights Violations:
[Side bar:
" Each joint strategic plan shall include...
"... An analysis of the threat posed by violations of intellectual
property rights, including the costs to the economy of the United
States resulting from violations of intellectual property laws, and
the threats to public health and safety created by counterfeiting and
infringement...
"... Such other information as is necessary to convey the costs
imposed on the United States economy by, and the threats to public
health and safety created by, counterfeiting and infringement, and those
steps that the Federal Government intends to take over the period
covered by the succeeding joint strategic plan to reduce those costs
and counter those threats." Source: Section 303 (e)(5) and (8), P.L.
110-403. End of side bar]
The 2010 joint strategic plan included analysis by outside entities of
the threat posed by violations of IP rights as called for under the
PRO-IP Act. The IPEC issued a Federal Register notice in February 2010
to obtain public comments on the costs to the U.S. economy resulting
from IP violations, and the threats to public health and safety
created by infringement.[Footnote 23] The IPEC received comments
regarding costs to the U.S. economy resulting from infringement of IP
rights, both direct and indirect, including impact on the creation or
maintenance of jobs, and concerns that counterfeits are being found in
products related to the nation's critical infrastructure, in defense
technologies, and in life-saving medical equipment. The plan's
appendix also included a summary of studies relevant to costs to the
economy of the United States resulting from violations of IP laws, and
the threats to public health and safety created by counterfeiting and
infringement.[Footnote 24]
Requirements Related to Enhancing Efforts of Foreign Governments:
[Side bar:
"The joint strategic plan shall include programs to provide training
and technical assistance to foreign governments for the purpose of
enhancing the efforts of such governments to enforce laws against
counterfeiting and infringement. With respect to such programs, the
joint strategic plan shall...
"... seek to enhance the efficiency and consistency with which Federal
resources are expended, and seek to minimize duplication, overlap, or
inconsistency of efforts;
"... identify and give priority to those countries where programs of
training and technical assistance can be carried out most effectively
and with the greatest benefit to reducing counterfeit and infringing
products in the United States market, to protecting the intellectual
property rights of United States persons and their licensees, and to
protecting the interests of United States persons otherwise harmed by
violations of intellectual property rights in those countries;
"... in identifying [such priorities], be guided by the list of
countries identified by the United States Trade Representative[in the
Special 301 Process]; and;
"... develop metrics to measure the effectiveness of the Federal
Government‘s efforts to improve the laws and enforcement practices of
foreign governments against counterfeiting and infringement." Source:
Section 303(f)(1)-(4), P.L. 110-403. End of side bar]
The 2010 joint strategic plan addressed all of the PRO-IP Act
requirements related to enhancing efforts of foreign governments. The
plan discussed improving the effectiveness of U.S. personnel stationed
overseas to combat IP infringement and coordination of international
capacity building and training. The plan also explicitly stated that
the federal government will "focus capacity building and training
efforts in those countries in which intellectual property enforcement
is a high priority and where those efforts can be most effective."
Furthermore, the plan described how the list of countries identified
by the USTR under the Special 301 process[Footnote 25]--that is, those
countries that deny adequate IP rights protection--will be utilized by
an interagency process to work with foreign governments to improve
their practices related to IP and market access. Finally, the plan
called for metrics to measure the effectiveness of the federal
government's efforts to improve the laws and enforcement practices of
foreign governments against counterfeiting and infringement. The plan
stated that one of its goals is to "increase the number of criminal
enforcement actions against IP infringers in foreign countries in
general." The performance measures section of the plan also stated
that "the IPEC, in coordination with [Department of State, Department
of Commerce, U.S. Trade Representative] and other relevant agencies
will report on changes in other countries in intellectual property
protection."
Description of Priorities and Means:
[Side bar:
"Each joint strategic plan shall include...
"... A description of the priorities identified for carrying out the
objectives in the joint strategic plan, including activities of the
Federal Government relating to intellectual property enforcement.
"... A description of the means to be employed to achieve the
priorities, including the means for improving the efficiency and
effectiveness of the Federal Government‘s enforcement efforts against
counterfeiting and infringement." Source: Section 303 (e)(1) and (2),
P.L. 110-403. End of sidebar]
In addition, the 2010 joint strategic plan described the priorities
identified for carrying out the objectives[Footnote 26] of the plan,
as well as the means to be employed to achieve these priorities. Staff
from the Office of the IPEC confirmed that the plan's "six categories
of focus" represent the "priorities" called for in the act. Therefore,
the plan's priorities for the federal government related to IP
enforcement are: (1) leading by example, (2) increasing transparency,
(3) ensuring efficiency and coordination, (4) enforcing IP rights
internationally, (5) securing the United States' supply chain, and (6)
building a data-driven government. The plan explicitly lays out 33
action items that the federal government plans to take under each of
these six priorities. Staff from the Office of the IPEC also confirmed
that the plan's "action items" provide information on the "means" to
be employed to achieve the plan's priorities. For example, a
description of a priority called "Securing Our Supply Chain" stated
that "— the U.S. Government will work to secure supply chains to stem
the flow of infringing products through law enforcement efforts and
through enhanced cooperation with the private sector." There were
eight action items under this priority, including Mandated Use of
Electronic Track and Trace for Pharmaceuticals and Medical Products
and Increased Enforcement Efforts to Guard Against the Proliferation
of Counterfeit Pharmaceuticals and Medical Devices. (See appendix III
for a list of the plan's priorities and action items.)
Strategies for Ensuring Coordination Included:
[Side bar:
"Each joint strategic plan shall include... A strategy for ensuring
coordination among the departments and agencies... which will
facilitate oversight by the executive branch of, and accountability
among, the departments and agencies responsible for carrying out the
strategy." Source: Section 303(e)(7), P.L. 110-403. End of side bar]
The 2010 joint strategic plan included strategies for ensuring
coordination among the departments and agencies responsible for
carrying out the strategy. First, the plan identified the agencies
that the IPEC worked with during the development of the plan: (1) OMB;
(2) DOJ, including the FBI; (3) Department of Commerce, including
International Trade Administration and U.S. Patent and Trademark
Office; (4) USTR; (5) Department of State; (6) Department of Homeland
Security, including Customs and Border Protection and Immigration and
Customs Enforcement; (7) Department of Health and Human Services,
including the Food and Drug Administration; (8) U.S. Department of
Agriculture; and (9) the U.S. Copyright Office.[Footnote 27]
The plan also included coordination strategies to be used during the
implementation of the plan. For example, "Ensuring Efficiency and
Coordination" was one of the plan's priorities and included the
following action items: (1) Coordination of National Law Enforcement
Efforts to Avoid Duplication and Waste; (2) Coordination of Federal,
State, and Local Law Enforcement; (3) Coordination of Training for
State and Local Law Enforcement and Prosecutors; (4) Improve the
Effectiveness of Personnel Stationed Overseas to Combat Intellectual
Property Infringement; (5) Coordination of International Capacity
Building and Training; and (6) Establishment of a Counterfeit
Pharmaceutical Interagency Committee. Furthermore, coordination
strategies for implementing agencies were also included in the plan's
other priorities. For instance, an action item under the plan's
"Increasing Transparency" priority stated that "—USTR, in coordination
with the IPEC, will initiate an interagency process to assess
opportunities to further publicize and potentially expand on the
[Notorious Markets][Footnote 28] list in an effort to increase public
awareness and guide related trade enforcement actions."
Initial List of Performance Measures Established:
[Side bar:
"Each joint strategic plan shall include... The performance measures
to be used to monitor results under the joint strategic plan during
the following year." Source: Section 303(e)(4), P.L. 110-403. End of
side bar]
The 2010 joint strategic plan established five performance indicators
for IP protection and enforcement: (1) law enforcement actions, (2)
seizures, (3) training and outreach, (4) increased IP protection in
other countries, and (5) public perceptions of IP rights. The plan
stated that measuring and reporting the effectiveness of the plan
conveys to the public the impact of the federal government's work and
helps the government to continue to expand effective enforcement
activities and fix or curtail ineffective ones. The plan stated that
the list of key performance indicators is "an initial list of key
performance indicators for IP enforcement, primarily measuring
government activities." The plan also stated that "as the U.S.
Government as a whole gains experience collecting and analyzing these
indicators, further modifications or additional measures may follow."
The plan noted "that the goal--reduced infringement of IP rights--is
difficult to accurately measure, in large part, because infringers,
like other types of thieves, try to hide their actions." GAO's
guidance[Footnote 29] on performance measures within a national
strategy recommends discussing the importance of implementing parties'
establishing priorities, milestones, and performance measures to help
ensure accountability. Moreover, GAO's guidance on key attributes of
successful performance measures[Footnote 30] recommends aligning
performance measures with agency-wide goals or, in this case, the
priorities of plan.
Implementing Entities Not Identified for all Action Items Aligned to
Priorities:
[Side bar:
"Each joint strategic plan shall include... An identification of the
departments and agencies that will be involved in implementing each
priority..." Source: Section 303(e)(6), P.L. 110-403. End of side bar]
Although most action items listed under the plan's priorities
identified specific departments and agencies to be involved in their
implementation, it was not done in all cases. Because each of the
plan's priorities was comprised of multiple action items, the
identification of implementing departments or agencies was made at the
action item level.
In most cases, the actions items identified specific departments and
agencies responsible for implementation of those items. For instance,
an action item entitled Establishment of a U.S. Government-Wide
Working Group to Prevent U.S. Government Purchase of Counterfeit
Products stated,
The IPEC will convene this working group, whose members will include
the National Security Council (NSC), Department of Defense (DOD)/
Acquisition, Technology and Logistics (AT&L), National Aeronautics and
Space Administration (NASA), General Services Administration (GSA),
[Department of Commerce], Small Business Administration (SBA),
[Department of Homeland Security], and other participants as may be
identified by the IPEC.
The plan added, "The working group shall be led by the IPEC, the
Administrators of GSA and Federal Procurement Policy, and the
Undersecretary of Defense for AT&L at DOD."
However, 12 out of 33 action items assigned implementation to the U.S.
government generally instead of to specific departments and agencies.
For example, the action item Improved Transparency in Intellectual
Property Policy-Making and International Negotiations stated that "the
U.S. Government will enhance public engagement through online
outreach, stakeholder outreach, congressional consultations and
soliciting feedback through advisory committees, official comment
mechanisms such as Federal Register notices, notices of proposed
rulemaking and notices of inquiry."[Footnote 31]
Staff from the Office of the IPEC stated that not all action items in
the joint strategic plan identified departments and agencies because
it was not appropriate to assign specific entities, but rather it was
appropriate to assign the U.S. government. However, the action item
Improve the Effectiveness of Personnel Stationed Overseas to Combat
Intellectual Property Infringement is an example of an action item
that was assigned to the U.S. government generally, but could have
been assigned to specific departments and agencies. Two GAO
reports[Footnote 32] described the federal agencies that have
personnel posted overseas who conduct activities related to IP
enforcement and protection and their respective roles and
responsibilities. This suggests that any or all of these specific
departments and agencies could have been identified as entities to be
involved in implementing this action item. GAO's guidance[Footnote 33]
on organizational roles, responsibilities, and coordination within a
national strategy recommends identifying the specific federal
departments, agencies, or offices involved and, where appropriate, the
different sectors, such as state, local, private, or international
sectors. By not assigning implementation of all action items to
specific departments and agencies, the departments and agencies
involved in IP enforcement cannot be held accountable for carrying out
the plan's strategy.
Resource Estimates to Implement Plan Not Included:
[Side bar:
"Each joint strategic plan shall include... Estimates of the resources
necessary to fulfill the priorities..." Source: Section 303(e)(3),
P.L. 110-403. End of side bar]
While the 2010 joint strategic plan included a strategy for data
collection and analysis needed to establish resource estimates, the
plan did not include actual estimates of the resources needed to
fulfill the plan's priorities because data collection and analysis are
still in progress. The plan stated, "In order to better track resource
baselines and inform future resource allocations dedicated to IP
enforcement, the IPEC will collect annually the amount of U.S.
Government resources spent on IP enforcement personnel, technologies,
programs and other efforts." The plan also stated that the IPEC has
already begun collecting data for fiscal year 2010 through a budget
data request, whereby agencies report the amount of resources they
dedicated to human capital and programs, identified metrics used in
measuring IP enforcement successes, and provided planned and estimated
expenditures for future years. The plan asserted that the IPEC will
continue coordinating the budget data request annually, and will
request the same data and metrics to allow for cross and multi-year
comparisons.
GAO's guidance[Footnote 34] on how to develop a national strategy
recommends that plans address what the strategy will cost, the sources
and types of resources and investments needed, and where those
resources and investments should be targeted. Furthermore, GAO's
guidance suggests the inclusion of a discussion of the types of
resources required, such as budgetary, human capital information,
information technology, research and development, procurement of
equipment, or contract services. Staff from the Office of the IPEC
stated that because data collection and analysis on current federal
resources spent on IP enforcement by these agencies are still in
progress, the plan cannot yet estimate the resources needed. However,
the plan and Office of the IPEC staff did not specify whether resource
estimates would be established in time for the next joint strategic
plan, nor did they specify whether these resource estimates would be
aligned to the priorities of the plan. By including resource estimates
needed to fulfill the priorities in future plans, the IPEC and
departments and agencies involved in IP enforcement will be able to
communicate to Congress about resources available to support the joint
strategic plan and to work towards effective resource allocation.
Conclusions:
The PRO-IP Act of 2008 recognized the importance of protecting and
enforcing IP rights by providing for additional IP enforcement
resources, requiring key agencies to report on their IP enforcement
efforts and establishing the Office of the IPEC within the Office of
the President to coordinate federal IP enforcement efforts. Although
IP protection and enforcement is challenging and complex, DOJ, the
FBI, and the Office of the IPEC have made progress in implementing
provisions of the act, including increasing staff and enhancing
training, reporting, and planning. The Office of the IPECs'
development of the first joint strategic plan represents an important
step to providing an integrated strategy to protecting and enforcing
IP rights.
While the current joint strategic plan generally addresses all content
requirements listed in the PRO-IP Act, two enhancements could help to
improve future plans. Most significantly, the existing plan does not
always assign implementation responsibility to specific departments or
agencies for the action items that align with the plan's priorities.
Accountability is a significant element in any plan and is a
requirement of the PRO-IP Act. Agency accountability is impaired when
specific assignments for priority action items are not assigned to the
IPEC and departments and agencies involved. In addition, the plan
addresses the need to develop resource estimates to fulfill the plan's
priorities by describing initial steps being taken to collect
information on resources from the various agencies. However, future
plans would benefit from the inclusion of actual resource estimates
that are aligned to priorities, which would help the IPEC and
departments and agencies involved in IP enforcement communicate to
Congress about resources available to support the joint strategic plan
and work towards effective resource allocation. The IPEC and the
Interagency Intellectual Property Enforcement Advisory Committee will
have an opportunity to address these issues when it issues future
joint strategic plans, which are required by the PRO-IP Act.
Recommendations for Executive Action:
To meet the PRO-IP Act's content requirements related to the Joint
Strategic Plan on Intellectual Property Enforcement and increase
effectiveness and accountability, we recommend that the Intellectual
Property Enforcement Coordinator, in consultation with the Interagency
Intellectual Property Enforcement Advisory Committee, take the
following actions when developing the 2013 plan and subsequent plans:
* assign implementation of all of the plan's priorities and related
action items to specific departments and agencies; and:
* provide estimates of the resources needed to carry out the
priorities of the plan.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Acting Director of the
Office of Management and Budget and the Assistant Attorney General for
Administration, Department of Justice. Staff from the Office of
Management and Budget, including from the Office of the Intellectual
Property Enforcement Coordinator, provided oral comments in which they
generally concurred with our findings and recommendations. They
further stated that the joint strategic plan represents the
administration's Interagency Intellectual Property Enforcement
Advisory Committee's commitment to implement the action items and
improve intellectual property enforcement efforts, as well as meet the
requirements of the PRO-IP Act. They stated that in accordance with
the act, the Office of the IPEC staff will report annually to the
Congress on the progress made on implementing the strategic plan. OMB
and DOJ provided technical comments, which we incorporated as
appropriate.
We are sending copies of this report to interested congressional
committees, the U.S. Attorney General, OMB, and the IPEC. In addition,
this report will be available at no charge on GAO's Web site at
[hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-4347 or yagerl@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. Individuals who made key contributions
to this report are listed in appendix III.
Signed by:
Loren Yager:
Director, International Affairs and Trade:
[End of section]
Appendix I: Scope and Methodology:
To determine the status of the implementation of the requirements of
the Prioritizing Resources and Organization for Intellectual Property
Act of 2008 (PRO-IP Act) that are assigned to the Office of the
Intellectual Property Enforcement Coordinator (IPEC), the Department
of Justice (DOJ), and the Federal Bureau of Investigation (FBI), we
examined the PRO-IP Act to identify those requirements assigned to
these offices and met staff and officials from these offices to
discuss their implementation efforts. We requested that the IPEC, DOJ,
and the FBI provide us with a written description of the status of
their efforts and describe any challenges they faced related to
implementing each requirement. Because of time limitations, we did not
independently verify all agency statements, but attributed their
statements accordingly. We compared each office's efforts to the
requirements called for in the act to determine the status of their
implementation and then met with staff from the Office of the IPEC,
and officials from DOJ and the FBI to clarify our observations. We
determined the data used in this report were sufficiently reliable for
our purposes.
To compare the 2010 Joint Strategic Plan on Intellectual Property
Enforcement to the content requirements detailed in the PRO-IP Act, we
evaluated content from the plan against each content requirement
listed in applicable provisions of the act to determine which content
requirements were addressed. To determine whether the plan addressed
the act's requirement to identify the departments and agencies that
will be involved in implementing each priority, we reviewed each of
the six priorities (also called "categories of focus") and the action
items aligned to them. Because each priority was comprised of the
multiple action items, the identification of the implementing agencies
and departments were made at the action item level. For purposes of
our analysis, we categorized the identification of implementing
agencies for each of the plan's 33 action items as one of the
following:
* Specific. Included in their description the identification of the
specific departments and agencies responsible for implementing the
action item.
* Broad. Did not include identification of the specific departments or
agencies responsible for implementing the action item, but rather
generally assigned implementation, for example, to the "Federal
Government," "Federal Agencies," or "Federal law enforcement agencies."
* Both. Included both specific identification of the departments or
agencies responsible for implementing the action item and generally
assigned implementation to the "Federal Government," "Federal
Agencies," or "Federal law enforcement agencies."
* Neither. Did not include either specific identification of the
departments or agencies responsible for implementing the action item
and did not generally assign implementation to the "Federal
Government," "Federal Agencies," or "Federal law enforcement agencies."
[End of section]
Appendix II: 2010 Joint Strategic Plan on Intellectual Property
Enforcement Priorities and Related Action Items:
Leading by Example:
* Establishment of a U.S. government-wide working group to prevent
U.S. Government purchase of counterfeit products;
* Use of legal software by federal contractors.
Increasing Transparency:
* Improved transparency in intellectual property policy-making and
international negotiations;
* Increased information sharing with rightholders;
* Communication with victims/rightholders;
* Reporting on best practices of our trading partners;
* Identify foreign pirate web sites as part of the Special 301 process;
* Tracking and reporting of enforcement activities;
* Sharing of exclusion order enforcement data;
* Enhanced communications to strengthen Section 337 enforcement.
Ensuring Efficiency and Coordination:
* Coordination of national law enforcement efforts to avoid
duplication and waste;
* Coordination of federal, state, and local law enforcement;
* Coordination of training for state and local law enforcement and
prosecutors;
* Improve the effectiveness of personnel stationed overseas to combat
intellectual property infringement;
* Coordination of international capacity building and training;
* Establishment of a counterfeit pharmaceutical interagency committee.
Enforcing Our Rights Internationally:
* Combat foreign-based and foreign-controlled web sites that infringe
American intellectual property rights;
* Enhance foreign law enforcement cooperation;
* Promote enforcement of U.S. intellectual property rights through
trade policy tools;
* Special 301 ’action plans;“
* Strengthen intellectual property enforcement through international
organizations.
Securing Our Supply Chain:
* FDA notification requirement for counterfeit pharmaceuticals and
other medical products;
* Mandated use of electronic track and trace for pharmaceuticals and
medical products;
* Increased enforcement efforts to guard against the proliferation of
counterfeit pharmaceuticals and medical devices;
* Penalty relief for voluntary disclosure;
* Penalize exporters of infringing goods;
* Streamline bonding requirements for circumvention devices;
* Facilitating cooperation to reduce intellectual property
infringement occurring over the internet;
* Establish and implement voluntary protocols to help reduce illegal
internet pharmacies.
Building a Data-Driven Government:
* U.S. Government resources spent on intellectual property enforcement;
* Assessing the economic impact of intellectual property-intensive
industries;
* Comprehensive review of existing intellectual property laws to
determine needed legislative changes;
* Supporting U.S. businesses in overseas markets.
Source: 2010 Joint Strategic Plan on Intellectual Property Enforcement.
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Loren Yager, (202) 512-4347 or yagerl@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Christine Broderick, Assistant
Director; Martin DeAlteriis; Karen Deans; Timothy Fairbanks; Etana
Finkler; Justine Lazaro; and Ernie Jackson made key contributions to
this report.
[End of section]
GAO Related Products:
Intellectual Property: Observations on Efforts to Quantify the
Economic Effects of Counterfeit and Pirated Goods. [hyperlink,
http://www.gao.gov/products/GAO-10-423]. Washington, D.C.:April 12,
2010.
Intellectual Property: Enhancements to Coordinating U.S. Enforcement
Efforts. [hyperlink, http://www.gao.gov/products/GAO-10-219T].
Washington, D.C.: December 9, 2009.
Intellectual Property: Enhanced Planning by U.S. Personnel Overseas
Could Strengthen Efforts. [hyperlink,
http://www.gao.gov/products/GAO-09-863]. Washington, D.C.: September
30, 2009.
Intellectual Property: Leadership and Accountability Needed to
Strengthen Federal Protection and Enforcement. [hyperlink,
http://www.gao.gov/products/GAO-08-921T]. Washington, D.C.: June 17,
2008.
Intellectual Property: Federal Enforcement Has Generally Increased,
but Assessing Performance Could Strengthen Law Enforcement Efforts.
[hyperlink, http://www.gao.gov/products/GAO-08-157]. Washington, D.C.:
March 11, 2008.
Intellectual Property: Risk and Enforcement Challenges. [hyperlink,
http://www.gao.gov/products/GAO-08-177T]. Washington, D.C.: October
18, 2007.
Intellectual Property: Better Data Analysis and Integration Could Help
U.S. Customs and Border Protection Improve Border Enforcement Efforts.
[hyperlink, http://www.gao.gov/products/GAO-07-735]. Washington, D.C.:
April 26, 2007.
Intellectual Property: National Enforcement Strategy Needs Stronger
Leadership and More Accountability. [hyperlink,
http://www.gao.gov/products/GAO-07-710T]. Washington, D.C.: April 12,
2007.
Intellectual Property: Strategy Targeting Organized Piracy (STOP)
Requires Changes for Long-term Success. [hyperlink,
http://www.gao.gov/products/GAO-07-74]. Washington, D.C.: November 8,
2006.
Intellectual Property: Initial Observations on the STOP Initiative and
U.S. Border Efforts to Reduce Piracy. [hyperlink,
http://www.gao.gov/products/GAO-06-1004T]. Washington, D.C.: July 26,
2006.
Intellectual Property: U.S. Efforts have Contributed to Strengthened
Laws Overseas, but Significant Enforcement Challenges Remain.
[hyperlink, http://www.gao.gov/products/GAO-05-788T]. Washington,
D.C.: June 14, 2005.
Intellectual Property: U.S. Efforts Have Contributed to Strengthened
Laws Overseas, but Challenges Remain. [hyperlink,
http://www.gao.gov/products/GAO-04-912]. Washington, D.C.: September
8, 2004.
[End of section]
Footnotes:
[1] P.L. 110-403.
[2] Title III and IV of the P.L. 110-403.
[3] A copyright provides protection for literary and artistic works
such as books, musical compositions, computer software, and
cinematographic works (movies). A copyright is a property right in an
original work of authorship that arises automatically upon creation of
such a work and belongs, in the first instance, to the author. A
patent protects an invention by giving the inventor the right to
exclude others from making, using, or selling a new, useful, or
nonobvious invention during a specific term. Trademarks are words,
phrases, logos, or other graphic symbols used by manufacturers or
merchants to identify their goods and distinguish them from others.
Other types of intellectual property include trade secrets, industrial
designs, and geographic indications. Geographic indications are names
used to identify products with quality, reputation, or other
characteristics attributable to the origin of the product.
[4] Intellectual Property: Observations on Efforts to Quantify the
Economic Effects of Counterfeit and Pirated Goods. [hyperlink,
http://www.gao.gov/products/GAO-10-423] (Washington, D.C.: Apr. 12,
2010).
[5] This division also investigates computer intrusions and child
pornography.
[6] The National Intellectual Property Rights Coordination Center is
the U.S. government's clearing house for investigations into
counterfeiting and piracy. The National Intellectual Property Rights
Center was created to promote sharing of information, resources and
personnel between the U.S government agencies responsible for
combating counterfeiting, piracy and related IP rights crime. The
center is located in Arlington, VA.
[7] In September 1999, Congress authorized NIPLECC (P.L. 106-58).
[8] The council's membership included officials from: U.S. Customs and
Border Protection; U.S. Immigration and Customs Enforcement; the
Departments of Commerce, State, and Justice; the U.S. Patent and
Trademark Office; and the Office of the U.S. Trade Representative.
Department of Justice and the U.S. Patent and Trademark Office were co-
chairs.
[9] (P.L. 108-447).
[10] GAO, Intellectual Property: Strategy for Targeting Organized
Piracy (STOP) Requires Changes for Long-term Success, [hyperlink,
http://www.gao.gov/products/GAO-07-74] (Washington, D.C.: Nov. 8,
2006).
[11] Economic, High-Tech, and Cyber Crime Prevention grants were
authorized under the Consolidated Appropriations Act, 2008 (P.L. 110-
161).
[12] This program is authorized by the Omnibus Consolidated
Appropriations Act, 2010 (P.L. 111-117)
[13] Omnibus Appropriations Act, FY 2009 (P.L. No. 111-118)
[14] In fiscal year 2010, the FBI reported a total of 51 agents
dedicated to IP, of which 46 of these agents were assigned to 22 of
DOJ's 25 CHIP units. The remaining 5 agents were assigned to the
National Intellectual Property Rights Center to assist CCIPS. FBI
officials noted that the placement of these IP-dedicated agents within
the Intellectual Property Rights Unit and FBI field offices was
coordinated with, and approved by, the Office of the Deputy Attorney
General.
[15] FBI officials reported that the three agents in the Intellectual
Property Rights Unit were also actively charging IP investigations at
the end of August 2010.
[16] The U.S. Attorney General's Organized Crime Council was created
by executive order in 1969 and directed the U.S. Attorney General to
lead a government-wide response to organized crime. The council is
chaired by the Deputy U.S. Attorney General and consists of the
Assistant U.S. Attorney General for the Criminal Division and the
leaders of nine participating federal law enforcement agencies.
[17] DOJ, PRO-IP Act First Annual Report 2008-2009 (Oct. 13, 200).
[18] The PRO-IP Act listed the following as the Senate-confirmed
representatives of the departments and agencies who are involved in
intellectual property enforcement, and who are, or are appointed by,
the respective heads of those departments and agencies: (1) The Office
of Management and Budget; (2) Relevant units within the Department of
Justice, including the Federal Bureau of Investigation and the
Criminal Division; (3) The United States Patent and Trademark Office
and other relevant units of the Department of Commerce; (4) The Office
of the United States Trade Representative; (5) The Department of
State, the United States Agency for International Development, and the
Bureau of International Narcotics Law Enforcement; (6) The Department
of Homeland Security, United States Customs and Border Protection, and
United States Immigration and Customs Enforcement; (7) The Food and
Drug Administration of the Department of Health and Human Services;
(8) The Department of Agriculture; and (9) Any such other agencies as
the President determines to be substantially involved in the efforts
of the Federal Government to combat counterfeiting and infringement.
The act also listed the Register of Copyrights, or a senior
representative of the United States Copyright Office appointed by the
Register of Copyrights as a member of the advisory committee.
[19] Office of the IPEC staff stated that the IPEC and staff met with
many stakeholders including: pharmaceutical and medical device
companies; software, hardware, and video game makers; information
technology companies; high technology companies, including those
specializing in green technologies; biotech companies; photographers;
book publishers; musicians; composers; publishers; songwriters;
performers; recording studios; movie and television companies; unions;
industrial manufactures; manufactures of automobile and aviation
parts; cement companies; makers of consumer products; product safety
certifiers; sports companies; the apparel industry; and makers of
luxury goods.
[20] These sections were titled "Agencies' Intellectual Property
Enforcement Missions" and "Agencies' 2010 Major Intellectual Property
Enforcement Activities to Date."
[21] Agencies working with the Office of the IPEC included: (1) OMB;
(2) DOJ, including the FBI; (3) Department of Commerce, including
International Trade Association and U.S. Patent and Trademark Office;
(4) U.S. Trade Representative; (5) Department of State; (6) Department
of Homeland Security, including Customs and Border Protection and
Immigration and Customs Enforcement; (7) Department of Health and
Human Services, including the Food and Drug Administration; (8) U.S.
Department of Agriculture; and (9) the U.S. Copyright Office.
[22] The 2010 Joint Strategic Plan on Intellectual Property
Enforcement can be found at [hyperlink,
http://www.whitehouse.gov/omb/intellectualproperty/].
[23] 75 Fed. Reg. 8137 (Feb. 23, 2010).
[24] The plan states that the appendix is intended as a summary of
submissions and studies and is not intended to be a U.S. government
endorsement of any specific study, methodology, or data.
[25] "Special 301" refers to certain provisions of the Trade Act of
1974, as amended by the 1988 Omnibus Trade and Competitiveness Act
(P.L. 100-418), that require USTR to annually identify foreign
countries that deny adequate and effective protection of intellectual
property rights or fair and equitable market access for U.S. persons
who rely on intellectual property protection. USTR identifies these
countries with substantial input from interested persons and in
consultation with U.S. agencies, and publishes the results of its
reviews in an annual report.
[26] As stated in the PRO-IP Act, the plan's objectives included: (1)
reducing counterfeit and infringing goods in the domestic and
international supply chain; (2) identifying and addressing unjustified
impediments to effective enforcement action activities involving sale
of counterfeit or infringing goods; (3) ensuring that information is
identified and shared among relevant departments and agencies; (4)
disrupting and eliminating domestic and international counterfeiting
and infringement networks; (5) strengthening the capacity of other
countries to protect and enforce IP rights; (6) working with other
countries to establish international standards and policies for the
effective protection and enforcement of IP rights; and (7) protecting
IP rights overseas.
[27] The plan added that "the IPEC worked with other offices,
including the Office of the Vice President, the Office of Science and
Technology Policy, the Domestic Policy Council and the White House
Counsel's Office."
[28] The 2009 Special 301 report features a "Notorious Markets List"
that lists examples of marketplaces, including those on the Internet
that have been the subject of enforcement action, or may merit further
investigation for possible IP infringements, or both. The list
represents a selective summary of information reviewed during the
Special 301 process; it is not a finding of violations of law.
[29] GAO, Combating Terrorism: Evaluation of Selected Characteristics
in National Strategies Related to Terrorism, [hyperlink,
http://www.gao.gov/products/GAO-04-408T] (Washington, D.C.: Feb. 3,
2004).
[30] GAO, Drug Control: DOD Needs to Improve Its Performance System to
Better Manage and Oversee Its Counternarcotics Activities, [hyperlink,
http://www.gao.gov/products/GAO-10-835] (Washington, D.C.: July 21,
2010).
[31] This action item was under the priority "Increasing Transparency."
[32] GAO, Overseas U.S. Government Personnel Involved in Efforts to
Protect and Enforce Intellectual Property Rights, GAO-09-402R
(Washington, D.C.: Feb. 26, 2009) and Intellectual Property: Enhanced
Planning by U.S. Personnel Overseas Could Strengthen Efforts, GAO-09-
863 (Washington, D.C.: Sept. 30, 2009).
[33] [hyperlink, http://www.gao.gov/products/GAO-04-408T].
[34] [hyperlink, http://www.gao.gov/products/GAO-04-408T].
[End of section]
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